The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law
The book bearing this title is not a single-author monograph but an edited and translated collection of texts by two of the most important legal theorists of the Weimar Republic, Hans Kelsen and Carl Schmitt, assembled and translated by Lars Vinx, who also supplies an introduction and explanatory notes. Its subject is the Weimar-era controversy over constitutional guardianship: who, if anyone, is entitled to defend the constitution, and whether courts may review legislation for constitutionality. The volume makes available in English the central documents of that controversy, in which Kelsen and Schmitt respond directly to one another, first in abstract jurisprudential argument and then in the context of an acute constitutional crisis. The book includes a substantial introductory essay, the translated texts with editorial annotation, and reference material, including bibliography and index.
Introduction
Vinx’s introduction sets out the historical and theoretical background of the exchange. It reconstructs the constitutional situation of the Weimar Republic, in which the question of who guards the constitution had become urgently practical, and it explains how the dispute between Kelsen and Schmitt connects to their broader legal and political theories. The introduction also indicates what is at stake politically in the choice between judicial and presidential guardianship, and directs the reader to the secondary literature. Its purpose is to allow the translated texts to be read as a single connected debate rather than as isolated essays.
Kelsen on the Nature and Development of Constitutional Adjudication
The first translated text is Kelsen’s systematic treatment of constitutional adjudication. Kelsen approaches the problem through his general theory of law, according to which the legal order is a hierarchy of norms, with the constitution at the top as the ground of the validity of statutes and other acts. A constitution that merely establishes organs and procedures without providing a mechanism to ensure that lower norms conform to it is, on this view, incomplete as a legal guarantee. Kelsen therefore argues for a dedicated constitutional court empowered to annul unconstitutional acts — in particular, unconstitutional statutes. Because such a court does not itself enact legislation but only removes invalid norms from the legal order, Kelsen characterizes its function as that of a “negative legislator.” The essay traces the historical development of constitutional adjudication and defends its compatibility with democracy and parliamentarism, against the objection that judicial review substitutes the rule of judges for the will of the legislature.
Schmitt’s Argument against Constitutional Review
The second translated text presents Schmitt’s case against constitutional review, drawn from his work on the guardian of the constitution. Schmitt denies that the constitution can be protected by judicial process in the way Kelsen proposes. His argument turns on the political character of constitutional conflict: disputes over the fundamental decisions of the constitution are not, on his account, legal disputes that a court could settle by subsuming a case under a norm. He distinguishes the constitution itself — the substantive political decision of the people about the form of its existence — from individual constitutional laws, and argues that a court claiming the power to review constitutional legislation would place itself above the constitution it is supposed to protect. Schmitt also attacks the notion that ordinary courts or a constitutional tribunal could serve as a neutral arbiter of constitutional questions, contending that judicial review effectively transfers sovereign political authority to the judiciary. His critique is directed both at Kelsen’s theoretical proposal and at the practical claims then being made for the Reichsgericht and the Staatsgerichtshof.
Schmitt on Pluralism and the President as Guardian of the Constitution
The third translated text develops Schmitt’s alternative. He analyzes the Weimar party state as a pluralistic structure in which organized social groups, parties, and economic interests have captured the state and dissolved its unity; the state, in his account, has expanded into every sphere of social life while losing the capacity to stand above the contending groups. Against this fragmentation Schmitt poses the need for a power that is neutral in relation to the parties and capable of representing the unity of the people. He finds that power in the Reich President, whose authority rests on direct election by the whole people and whose constitutional instruments — the appointment and dismissal of the chancellor, the dissolution of the Reichstag, and the emergency powers of Article 48 — allow him to act as the guardian of the constitution. Schmitt draws here on the older idea of a “neutral power” standing above the ordinary branches of government, and presents the president not as an ordinary constitutional organ but as the custodian of the constitution’s substance in times of crisis.
Kelsen’s Reply: Who Ought to Be the Guardian of the Constitution?
The fourth text is Kelsen’s direct reply to Schmitt. Kelsen rejects the presidential solution as a surrender of legal protection to personal rule and argues that entrusting the constitution to the president effectively legitimates dictatorship. Against Schmitt’s claim that constitutional disputes are inherently political and therefore non-justiciable, Kelsen maintains that the political character of the underlying conflict does not disqualify a court from deciding the legal question of whether an act conforms to the constitution; the alternative to judicial review is not neutrality but the concentration of power in a single organ. Kelsen defends the constitutional court as the appropriate guardian precisely because it is bound by legal norms, whereas a president claiming guardianship is bound by nothing but his own discretion. The exchange thus crystallizes the opposition between a legalistic, norm-bound conception of the constitution and a decisionistic, sovereignty-centered one.
Prussia contra Reich: Schmitt’s Closing Statement in Leipzig
The fifth text takes the debate from theory into practice. It is Schmitt’s closing statement in the proceedings before the Staatsgerichtshof in the case known as Prussia contra Reich, arising from the Reich government’s intervention in Prussia under Article 48 in 1932. Appearing for the Reich, Schmitt defends the intervention as an exercise of the president’s constitutional guardianship, arguing that the Reich was entitled to act where a Land government had ceased to fulfil its constitutional duties. The statement shows how Schmitt’s theoretical account of the president as guardian was deployed in a concrete dispute over federal authority and emergency powers.
Kelsen on the Judgment of the Staatsgerichtshof of 25 October 1932
The final text is Kelsen’s examination of the court’s judgment in that case. The judgment had, in effect, upheld the Reich’s intervention while setting limits to it. Kelsen subjects the decision to critical analysis, testing whether its reasoning is genuinely legal or whether the court has effectively sanctioned a political seizure of power under the forms of adjudication. Read together with the preceding text, Kelsen’s commentary closes the volume by showing the two theories of constitutional guardianship confronting one another not as abstractions but as competing positions in the constitutional crisis of the Weimar Republic.
Overall Character of the Volume
The book is thus organized as a debate in documents: Kelsen’s theory of constitutional adjudication, Schmitt’s case against it, Schmitt’s alternative account of the president as guardian, Kelsen’s rebuttal, and then the two authors’ interventions in the Prussian crisis before the Staatsgerichtshof. Vinx’s translation and notes aim to make the technical vocabulary of German constitutional law intelligible to English-speaking readers, and the juxtaposition of the texts allows the reader to assess the coherence and the political consequences of each position. The volume’s concern throughout is the limit question named in its subtitle: whether constitutional law can be enforced by legal institutions, and what is lost or gained when the guardian of the constitution is sought in a court.
The Argument of Der Hüter der Verfassung
In Schmitt’s own text, the problem of guardianship is not primarily a question of judicial technique but of preserving the constitution as a political unity. Schmitt distinguishes the constitution from individual constitutional laws: the former is the fundamental decision about the form of political existence, while the latter are particular legal provisions that may be amended or interpreted. A guardian must therefore be capable of defending the former against threats that arise from the political process itself, including the fragmentation of the state into pluralist social and party organizations. On this account, a court bound to apply particular constitutional laws cannot protect the underlying unity of the constitution, because its judgments remain norm-bound and cannot supply the decisive political will needed in a crisis.
Schmitt’s positive case for the Reich President rests on the claim that the president is a neutral, independent power above the pluralistic parties and interests of parliamentary government. The president’s function is not ordinary administration but guardianship: to represent the unity of the Reich, to preserve the constitution’s institutional order, and to act when the normal legislative and administrative machinery fails. Article 48 of the Weimar Constitution is central to this construction, because it supplies the emergency competence through which the president can take the necessary measures. Schmitt presents presidential emergency power not as a suspension of the constitution but as an instrument for its preservation; the guardian acts to restore or secure the constitutional order, not to create a new one. This is why the argument is simultaneously legal and political: the president’s authority is derived from the constitution, but its exercise depends on a judgment about the existence and nature of a threat that no court can adequately make.
The book’s significance lies in this fusion of constitutional law with a theory of political decision. It challenges the assumption that the constitution can be protected by legal norms alone, and it makes the locus of guardianship depend on who can credibly embody the unity and continuity of the state. In doing so, Schmitt sharpens the contrast between a normativist constitutionalism that seeks to confine politics through adjudication and a decisionist constitutionalism that entrusts the defence of the constitution to an authority capable of acting decisively. The text thus provides the theoretical core of the Weimar debate over who guards the constitution, and it remains a classic statement of the case against judicial supremacy and for executive guardianship in times of constitutional crisis.
